SHANKARLAL KACHARABHAI OTHERS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal by special leave raises an interesting question involving the construction of S. 34, read with S. 301, of the Indian Penal Code.

(2.) The appellants who are 11 in number were accused Nos. 1 to 10 and 12 in the Sessions Court, Mehsana. The case of the prosecution may be stated thus. In the village of Aithor, there are about 300 houses of Kadva Patidars and about 15 to 20 houses of Leva Patidars. On January 16, 1961, at about 8 p.m. seven persons, who are Leva Patidars, came to the chowk where there is a pan shop cabin of Girdhar Shanker. These seven persons were Rama Bhupta, Lakha Madha. Hira Punjab Jetha Nagar, Purshottam Prabhuva, Manor Madha and Gova Shiva. At the same time the 12 accused also came to that place. Accused 1 to 6 were each armed with a muzzle loading gun; accused 7, 8, 11 and 12 were armed with sticks, accused 9 and 10 were armed with dharias, Accused 1 to 4 fired their guns and Rama Bhupta fell down and died near the door of the cabin of Girdhar. Accused 5 and 6 fired their guns and Lakha Madha was injured. Accused 1 fired his gun again and Jetha Nagar received injuries. Accused 5 and 6 fired again and Hira Punja was injured. Accused 7 to 12 were inciting accused 1 to 6 kill all these persons. Other specific acts were attributed to some of the accused. The learned Sessions Judge held that Rama Bhupta was killed as a result of the firing by accused 1 to 4, that Lakha Madha was injured by the firing by accused 5 and 6, that Jetha Nagar was injured by the firing by accused 1, that Hira Punja was injured by the firing by accused 5 and 6, that accused 12 causes stick injuries to Lakha and that accused 8 caused injury on the tongue of Purshottam Prabhuva. The Sessions Judge also held that the 12 accused constituted an unlawful assembly, but their common intention was not to kill Rama Bhupta but only Madha who was not present in the Chowk. He acquitted all the accused under S. 302, read with S. 149 of the Indian Penal Code, but convicted accused 1 to 4 under S. 302, read with S. 34 of the, Indian Penal Code and sentenced them to imprisonment for life and to a fine of Rs. 2000 each he convicted all the accused under S. 324, read with S. l49 of the Indian Penal Code for causing injuries to Hira Punja and others. Accused 5 to 12 were also convicted under S. 326, read with S. 34, and S. 324, read with S. 149 and S. 148 of the Indian Penal code and they were sentenced to various periods of imprisonment and fine. The accused preferred different appeals against their convictions and sentences and the State of Gujarat filed appeals against the acquittal of accused 5 to 12 under S. 302, read with S. 149 of the Indian Penal Code. The State of Gujarat also filed a criminal revision for enhancing sentences passed against all the accused. but it did not file any appeal against the acquittal of accused 1 to 4 on the charge under S. 302, read with S. 149 of the Indian Penal Code. The High Court convicted accused 1 to 4 under S. 302, read with Ss. 301 and 34 of the Indian Penal Code and confirmed the sentence of life imprisonment passed on them, but set aside the fine imposed on them. So far as the other accused, i.e., accused 5 to 12, are concerned, they were convicted under S. 302 read with Ss. 301 and 34 of the Indian Penal Code and also under S. 302 read with S. 149 of the said Code. In the result, the High Court sentenced all the accused to imprisonment for life for the said offences.

(3.) It is common case that if the conviction of accused 1 to 4 under S. 302, read with S. 34 and S. 301 of the Indian Penal Code, was set aside, all the accused would have to be acquitted in regard to the major offences. It is also not disputed that if the conviction of accused 1 to 4 under the said sections was confirmed, the appeal filed by the other accused would fail. The only question, therefore, is whether the conviction of accused 1 to 4 under S. 302, read with Ss. 34 and 301 of the Indian Penal Code, was correct.